Indonesia’s family law currently adheres largely to a fault-based divorce system, in which divorce must be justified by one party’s wrongdoing. Based on Law No. 1 of 1974 on Marriage and Government Regulation No. 9 of 1975, a divorce must be filed before the court and supported by reasons as outlined in Article 39 of the Marriage Law and Article 19 of the Government Regulation. This framework reflects a system that emphasizes the principle of making divorce difficult and therefore leans toward the fault-based approach.
This view was conveyed by Dr. Hartini from the Faculty of Law, Universitas Gadjah Mada (FH UGM), during her inaugural address as a professor in the field of dispute resolution in Islamic law on Thursday (Oct. 30) at the UGM Senate Hall.
In her inaugural speech titled “Modifying the Model of Non-Fault-Based Divorce in the Procedural Law of Religious Courts in Indonesia,” Professor Hartini explained that although Indonesia tends to follow a fault-based divorce system, its legal framework already incorporates elements of non-fault-based divorce through the concept of onheelbare tweespalt.
Derived from Dutch, the term refers to continuous disputes and irreconcilable differences within a marriage. In the non-fault-based divorce system, this concept aligns with the notions of an irretrievable breakdown of marriage or irreconcilable differences, both of which refer to situations where the marriage has effectively come to an end.
This principle is codified in Article 39(f) of the Marriage Law and Article 19(f) of Government Regulation No. 9 of 1975, which stipulates: “Between husband and wife, continuous disputes and quarrels occur with no hope of reconciliation.”
According to Professor Hartini, this clause serves as an entry point for adopting a non-fault-based divorce model, as it does not attribute blame or specify wrongful acts committed by either party.
Professor Hartini further elaborated that the Supreme Court’s jurisprudence and circular letters have progressively broadened the interpretation of Article 19(f), signaling a paradigm shift toward proving that the marriage is broken, rather than determining which spouse is at fault.
The latest Supreme Court Circular (SEMA) No. 3 of 2023, she noted, introduces elements consistent with the non-fault-based system by requiring proof of separate residence for at least six months, combined with ongoing disputes and quarrels.
She argued that it is time for Indonesia, particularly the Religious Courts, to adopt a modified non-fault-based divorce system, especially for cases involving irreconcilable disputes.
Such reform would help mitigate prolonged domestic conflict by shifting the focus from assigning blame to establishing that the marriage has irretrievably broken down. It would also ensure that child custody arrangements prioritize the child’s best interests.
“If persistent disputes and quarrels continue and reconciliation proves impossible, the marriage should be deemed broken,” she stated.
Professor Hartini emphasized that adopting a non-fault-based divorce model does not eliminate the existing fault-based system; rather, it complements it.
The latter would remain applicable under the reasons stated in Article 19(a–e) of Government Regulation No. 9 of 1975 and Articles 116(g–h) of the Compilation of Islamic Law, while non-fault-based divorce would rely on Article 19(f).
She asserted that this modification aligns with both Islamic law and the principle of discouraging divorce, as proceedings would still follow the procedural stages prescribed in the Religious Courts.
Moreover, Islamic law already recognizes a form of non-fault-based divorce known as khuluk, in which a wife may initiate divorce by paying compensation (iwadh) to her husband, followed by the husband’s declaration of divorce.
Professor Hartini highlighted several key points in her proposed model of non-fault-based divorce:
First, since the process does not center on fault, ancillary claims, such as joint property division and child custody, should ideally be settled through non-litigation methods or mediation, and formalized through the same court ruling that grants the divorce.
Second, to prevent impulsive divorces, a mandatory separation period should be maintained but extended beyond the current six-month requirement under the SEMA, with comparative models abroad allowing one to two years or more.
Third, the non-fault-based model presents opportunities for implementing joint child custody (shared custody), complementing the existing sole custody practice, which typically favors mothers, particularly for children under 12 years of age.
At the end of the ceremony, Professor Muh. Baiquni, Chair of the UGM Board of Professors, announced that Professor Hartini is among the 542 active professors at UGM, and one of 16 active professors from FH UGM out of a total of 27 professors who have served in the faculty’s history.
Author: Leony
Editor: Gusti Grehenson
Post-editor: Salma
Photographer: Donnie Trisfian